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Is the "gluttonous" PRO-IP Act about to get sprinkled with magical Fair Use pixie dust? It's possible, as Rep. Rick Boucher (D-VA) is considering a plan to meld his FAIR USE Act to the PRO-IP Act in the form of an amendment. Like any bit of magic, however, there's some sleight of hand going on here, and the result might be less than meets the eye.

The PRO-IP Act currently wending its way through Congress is an attempt to ratchet up copyright protections, in part by boosting statutory damages that copyright holders can collect. Google's top copyright lawyer (and the man who wrote a seven-volume treatise on the subject of copyright law), William Patry, called the bill the most "outrageously gluttonous IP bill ever introduced in the US," though the most controversial bit was recently pulled from the bill by Howard Berman (D-CA).

Boucher, who has a long history of advocacy for DMCA reform and increased fair use rights, has been considering a plan to attach his FAIR USE Act (a bill that has never made much headway in Congress) to the PRO-IP Act. ContentAgenda's Paul Sweeting was at a luncheon in DC this week where Boucher told the crowd that "there are some discussions about advancing some parts or all of 1201 in conjunction with other IP measures, to do it as part of a package."

Rick Boucher

The most likely package would be some sort of PRO-IP/FAIR USE Act Frankenstein's monster, and the inclusion of Boucher's bill could only be a win for consumers. But it would be a modest win. As we pointed out in our analysis of the FAIR USE Act last year, the bill (PDF) contains a series of DRM loopholes, but it does not contain support for bypassing DRM in all situations where the intended use is legal. (It would allow a user to bypass DRM in order to transmit content on a home network, though, which would be nice for those who would like to create media jukeboxes of their legally-acquired DVDs without being criminals.)

Boucher's not sure he will even proceed with the plan, but he did mount a spirited defense of fair use. Saying that DRM now gives companies the ability to trump the law by laying down harsh restrictions on content that go beyond copyright protection, Boucher warned, "One thing I've learned in the quarter century I've spent [in Congress] is that power once granted will be used. I have no doubt that within a few years we'll see companies taking steps to effectively cut off all fair use, unless we change the law."

Whether that change happens as part of the PRO-IP Act or not, Boucher made clear that fair use rights are something worth fighting for.